B.L. Salarpuria vs S. Choudhury
1991 Latest Caselaw 51 Del

JUDGMENT

P.N. Nag, J.

(1) In this revision petition filed under Section 25(B)(8) of the Delhi Rent Control Act, 1958, the petitioner-tenant has prayed for setting aside the impugned order dated 6th April, 1990 passed by Smt. Mamta Sehgal, Additional Rent Controller, Delhi vide which leave to the petitioner-tenant to defend the suit has been refused and order of ejectment has been made against him .and in favor of the respondent-landlord.

(2) The facts giving rise to this petition, in substance, are that the original respondent-landlord, namely, S. Choudhury (now deceased) filed a petition for eviction of the petitioner-tenant from the premises bearing No. B-2/96, Safdarjung Enclave, New Delhi-16. The petitioner-tenant filed an application seeking leave to defend the suit for ejectment on various grounds, inter ali, that earlier eviction petition on ground of personal requirement had been dismissed after contest by order dated 19.11.87 of Shri R.K. Sharma, learned Additional Rent Controller, Delhi and subsequent petition on the very same ground had been got dismissed as withdrawn by Shri S. Choudhury. After the affidavit was filed by the petitioner-tenant, the Additional Rent Controller after hearing the parties refused leave to defend the suit filed and ordered the eviction of the petitioner-tenant from the aforesaid premises under Section 14(1)(e) of the Delhi Rent Control Act, 1958 holding that the premises were required by the respondent-landlord bonafide. Being aggrieved by this order, the present revision petition has been filed by the petitioner-tenant mainly on the ground that the impugned order has not been executed and the landlord, namely, S. Choudhury has since died and the cause of action perished with the death of S. Choudhury, the original landlord and nothing survives for the legal representatives of the deceased S. Choudhury and therefore eviction petition should be dismissed.

(3) It has not been disputed by the present respondent (L.R. of the deceased S. Choudhury) that S. Choudhury has since died and the eviction petition has not been executed so far. However, it has been contended that since the order of ejectment has already been passed in favor of the landlord S. Choudhury before his death, it could not be disturbed on his death either in appeal or revision and the subsequent developments should not be taken note of.

(4) I have carefully considered the rival contentions of the parties and in my opinion there is a good deal of substance in the submission of the learned counsel for the petitioner-tenant that the High Court in revision petition should take note of subsequent events h disposing of the proceedings as these events have material bearing on the landlords' right to evict the tenant. It may be noted here that the case set up by the original landlord was that under compelling circumstances he was living with his daughter, namely, Nupur Choudhury and, therefore, he required the premises in dispute which belonged to him for his bonafide personal requirement. Mrs. Nupur Choudhury admittedly was not dependent on S. Choudhury, her father as she was a lecturer in the Department of Economics in University of Delhi and occupying a part of the premises bearing No. 9A/5, Western Extension Area, Karol Bagh, New Delhi. That accommodation consisted of 2 rooms, I store etc. but the difficulty was that his daughter was taking practical classes beyond college hours and she had to use her bedroom for that purpose as there was no separate study room. It was not the case of the landlord S. Choudhury that his daughter, Mrs. Nupur Choudhury, had been compelled to live with him in every small accommodation and that he required the accommodation in dispute for him and for bids daughter who is dependent upon him. Having this background in view and having taken into consideration the affidavit of the petitioner-tenant, the trial court was of opinion that there was no friable issue between the landlord and the tenant and consequently leave to defend was refused.

(5) After having perused the reasoning of the trial court it is apparent while refusing leave to the petitioner-tenant to defend the suit filed by the landlord what has predominantly weighted in her mind is that the then landlord, S. Choudhury aged 77 years is completely dependent upon his daughter Mrs Nupur Choudhury and under the compelling circumstances he was living with her and as such his requirement of the premises was bonafide and, there fore, the ejectment was consequently ordered by her. However, these 'circumstances are not available now after the death of S. Choudhury, the original landlord who filed the suit for ejectment under Section 14(1)(e) of the Delhi Rent Control Act, 1958. On the other hand, the death of S. Choudhury, the original landlord has material bearing on the landlords' right to evict. In my view, the High Court in revision can always take cognizance of new developments which have material bearing on the landlord's right to evict, in Pasupu leti Venkateswarlu v. The Motor & General Traders the Supreme Court has clearly laid down that the High Court in revision is bound to take note of subsequent events in disposing of the proceedings if they have material bearing on the landlord's right to evict. In this connection the discussion in paragraphs 4 to 6 of that judgment are very instructive. Suffice it to refer here the following observations of the Supreme Court:

"EQUALLYclear is the principle that procedure is the hand-maid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedly. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice-subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court."

"...THEcourt can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed".

(6) In view of the law laid down by the Supreme Court, the Court is duty bound to take the fact and reality of death of S. Choudhury into consideration as it has material bearing on the case and, therefore, the impugned order cannot be sustained and the matter requires to be re-considered in the light of this new development about the death of the original landlord, S. Choudhury. On the other hand, learned counsel for the respondent relied heavily on Shantilal Thakordas & Others v. Chimanlal Maganlal Telwala, and vehemently contended that the order of ejectment has been passed when the original landlord S. Choudhury, was alive and that order cannot be disturbed on his death either in appeal or revision. The facts and circumstances of the case cited by the learned counsel for the landlord-respondent are entirely different from the present case. In that case it has been observed that on the death of the landlord the right to sue survived to the members of the family of the deceased and the senior members of the family were competent to continue with the suit for ejectment for his occupation and for the occupation of other members of the family. In the present case, the petitioner-tenant has imp leaded the daughter of the deceased S. Choudhury, Mrs. Nupur Choudhury, as a respondent. The respondent in view of the law laid down by the Supreme Court can continue the suit for eviction filed by the original landlord-S. Choudhury against the petitioner-tenant but the matter requires fresh consideration in view of the peculiar tacts and circumstances of the case, on the death of original landlord S. Choudhury. .However, nowhere it has been held that after the death of the landlord the order of eviction already passed in favor of the landlord cannot be disturbed if subsequent facts warrant otherwise.

(7) In the light of the above discussion, the impugned order is set aside and the matter is remanded to the trial court to decide the case afresh in accordance with the law after taking into consideration the subsequent development of death of original landlord S. Choudhury, after affording an opportunity to both the parties to take whatever steps they may like to take in accordance with law to substantiate their claim.